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Labor Relations Update

Higher Education Alert: NLRB Trend in Easing Unionization Continues with Recent Decision

Posted in Bargaining units, NLRA, NLRB, Representation Elections

The National Labor Relations Board issued a 3-2 decision last month in Pacific Lutheran University, 361 NLRB No. 157, in which it significantly modified the standards for determining:  (1) whether college or university faculty members are managerial employees and thus not protected by the National Labor Relations Act; and (2) when the Board should decline to exercise jurisdiction over a college or university that claims to be a religious institution.  (Proskauer had submitted an amicus brief in the case in support of various organizations representing colleges and universities on the first issue.)  (For a fuller discussion of the Board’s decision, please see Proskauer’s Client Alert.)

On each issue, the majority’s decision seemingly eases the path for unions seeking to represent faculty members at institutions of higher education:

  • First, the majority put a new gloss on the Supreme Court’s seminal decision concerning NLRA coverage of faculty members, NLRB v. Yeshiva University.  (Proskauer represented Yeshiva University in that case, which the high court decided in 1980.)  The Board will now find that faculty members are managerial employees only where their recommendations are “almost always” followed by administrators.  In addition, the majority’s new test identified three “primary” areas of decision making that it will accord the greatest weight, but in doing so combined in one such primary area (“academic programs”) several academic decisions that the Board has traditionally given greater weight in dozens of decisions over several decades, and elevated two other areas of decision making (enrollment management and finances) that have never held such significance.  And critically, the majority essentially avoided the D.C. Circuit’s mandate in LeMoyne-Owen College v. NLRB and Point Park University v. NLRB to explain “which facts are significant and which less so, and why.”  As dissenting Member Johnson wrote:

[T]he majority has decided to create a comprehensive test here, and, therefore, the actual weighting of its factors, including what showing is sufficient to meet the majority’s test, is a rather large analytical question to be left unresolved, particularly if the hope is to provide predictability and guidance with regard to how the Board will make these determinations in the future.

  • Second, the majority abandoned the “substantial religious character” requirement that it had previously applied in determining whether to assert jurisdiction over religiously-affiliated colleges and universities, but declined to adopt the D.C. Circuit’s three-part test in University of Great Falls v. NLRB that sought to avoid the risk of infringement upon First Amendment rights as addressed in the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago.  Instead, the Board will now require a college or university to show “that it holds out the petitioned-for faculty member’s [sic] as performing a specific role in creating or maintaining the school’s religious educational environment,” a requirement that the dissenting Board members argued does no better in mitigating the constitutional risk created by the Board’s assertion of jurisdiction.

The Pacific Lutheran decision closely followed the Board’s announcement of new rules that will speed up representation elections and, combined with the Board’s decision in Specialty Healthcare, which liberalized the standard for finding a petitioned-for bargaining unit to be appropriate, epitomizes a trend favoring unions in representation proceedings.  But given the strongly worded dissenting opinions and the majority’s failure to adequately address the D.C. Circuit’s concerns on either issue, we expect that Pacific Lutheran will not be the final word for the higher education community.

NLRB Issues Final Election Rules Revision

Posted in NLRA, NLRB, Representation Elections

As anticipated, the National Labor Relations Board today made public its final revised election rules.  The new rules will become effective 120 days following their publication in the Federal Register.  The publication date is scheduled to be Monday, December 15, 2014, one day before the expiration of the term of Member Schiffer.

There are really no major surprises in how the final rules came out.   Among the key provisions are:

  • All documents attendant to an election may now be filed electronically.
  • The election voter list (“Excelsior List”) must now include – in addition to names and home addresses of the employees – their personal phone numbers and personal email addresses (if available to the employer), and their work locations, shifts and job      classifications.
  • Hearings to be scheduled 8 days following the filing of the election petition, with discretion in the regional director to exceed that time frame in “complex” cases, or if the requesting  party can show “special circumstances” (for two additional days) or “extraordinary      circumstances” (for more than two days).
  • The non-petitioning party (generally the employer) must file a statement of position by noon on the seventh day after the filing of a petition, with allowances for changes if the hearing is not scheduled for the 8th day following the petition.
  • Eliminates post-hearing review as a matter of right.
  • Elimination of the 25 day “waiting period” before scheduling an election following the issuance of the decision (which had customarily been observed by regional directors following the hearing in contemplation of pre-election discretionary review).

The final rules submitted to the Federal Register are over 700 pages in length – which includes an explanatory preamble, views of the two dissenting Board members, and the majority’s response to the dissent.  The Board’s web site, nlrb.gov, also includes other explanatory material, including links the Board’s press release and a redline version comparing the new rules to the existing rules.  Those can be viewed here.

It is anticipated that there will be litigation in an attempt to block the rules.  It is also possible that Congress could attempt to vacate the rules under the Congressional Review Act or with other legislation, but such action would be subject to a presidential veto and a potential override.  Also, although apparently not possible in 2015 if the so called “cromnibus” budget bill is passed, later fiscal year appropriations could forbid funding for certain actions or enforcement under the new rules.   All of this will, of course, take time to play out.



NLRB Reverses Course, Gives Employees Certain Rights to Use Employer’s Email

Posted in Email, Employer policies, NLRA, NLRB, Protected activity, Social Media, Social Media Policies, Solicitation

In a decision that reverses existing case law on employee use of  employer email, the National Labor Relations Board (with two members filing separate dissents) has decided that under certain circumstances employees do have the right to use and employer’s email to engage in protected communications under the National Labor Relations Act. Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).

The key points in the majority opinion are:

  • The decision applies only to the employer’s employees, not non-employees.
  • The decision applies only to the use of the employer’s email, and not other forms of electronic communication maintained by the employer.
  • Importantly, the decision applies only in situations where the employees are already authorized to use the employer’s email for business purposes (or, it would seem to follow, for non-business purposes).
  • The use is subject to “reasonable” restrictions (e.g., non-work time, no oversized attachments, etc) necessary to maintain “production and discipline”.
  • Employers may monitor employee use as long as it is not discriminatory or tailored to impede protected use.

The Board will apply the new rules announced in Purple Communications case to all other pending cases presenting the issue, subject to a remand to determine if any of the employers involved can establish that any restrictions they have applied are lawful.

This decision is not a surprise.  It was well publicized that the Board was considering the issue anew, and the Board requested amicus briefs – a sure sign that the case is deemed important by the Board and a fairly reliable (though by no means certain) signal that the Board is going to change the law.

Bigger questions loom about the importance of the decision.  As the dissents pointed out, the decision introduces uncertainty  for employers, who now must figure out what type and how many “restrictions” are needed and whether they can be justified to the Board; and who must now navigate the shoals of monitoring employee email and the risks of unlawful surveillance that can pose.

Query how important the decision is to unions and employees.  Certainly a decade ago it would have been more important, but as the dissents also note, the technological revolution of the past few years has provided myriad means of electronic communication available to employees and unions, which do not depend at all on the use of or access to employer email.

All of which raises the question whether, on balance, the uncertainty for employers introduced by the decision, is worth the marginal additional communication rights it gives to employees?


No Duty To Bargain Over Discipline During Contract Hiatus, NLRB Division of Advice

Posted in Advice, Collective Bargaining, Due Process, General Counsel, NLRA, NLRB, Section 8(a)(5), Uncategorized

The NLRB has been active but quiet during the last few months as the agency quietly reaffirms decisions nullified by the Supreme Court.  By all accounts, however, and as history has proved, the NLRB is getting ready to issue an onslaught of law-changing decisions as we head into the holiday season.  This onslaught of change likely will be hastened by the departure of Board Member Schiffer, whose term is set to expire December 16.  So, keep an eye out as of December 18 when the decisions are likely to be posted on the NLRB’s website.  Let’s not forget, too, the Board likely will vote on the ambush election rules in the coming days.

In the meantime, the NLRB Division of Advice has answered a question that has been the subject of many charges since the Board’s decision in Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012), where it held that in cases where a union has recently secured representational rights, the employer has a duty to bargain over discretionary aspects of discipline before imposition until an initial contract is reached.  The Board’s decision in Alan Ritchey was invalidated by the Supreme Court earlier this year, yet the agency still applies its rationale as if nothing happened to the underlying case.

If an employer in negotiations over an initial contract had an obligation to bargain over discretionary aspects of discipline, then would this same rationale apply to discipline issued during a contract hiatus?  The Division of Advice, in a memorandum released on November 18, 2014 has answered this question in the negative.

In Washington River Protection Solutions, Case 19-CA-125339, Advice Memorandum dated October 14, 2014, the employer, a Department of Energy contractor at a nuclear power plant, had adopted a collective bargaining agreement from its predecessor.  That contract expired while the parties were in negotiations for a successor agreement.  The employer had in place a written discipline policy that “generally requires progressive discipline” in that it “allows the Employer to skip steps in the progressive-discpline” if it deems the employee’s actions to constitute “extremely serious misconduct.”  Among the items listed in this category was “[d]eliberate disregard of safety rules or safety procedures.”

The case involved an employee electrician who discovered a pile of unknown white powder on the floor of the nuclear power plant.  Safety protocol required this powder to be tested.  While an employee of the Employer’s Industrial Hygiene Department leaned over to take a sample of the powder, the electrician repeatedly questioned her about her credentials, and, while she was testing the powder, the electrician kicked the powder into the air allegedly stating, “there, breathe it in.”  The employer deemed this action (which was denied by the electrician) to be extremely serious misconduct and the electrician was discharged.

The union filed a grievance and the parties discussed the matter at various stages of the procedure.  However, because the parties were between contracts when the discharge occurred, the employer was not legally required to arbitrate the grievance.  After denials of the grievance, the union filed a charge alleging that due to the fact the level of discipline was discretionary, under Alan Ritchey, the employer had an obligation to bargain over it prior to imposition.

The Division of Advice in a footnote first had to overcome the most obvious obstacle, that Alan Ritchey no longer is the law.  The Division of Advice relegated this to a footnote, stating that that although Alan Ritchey had been issued by an improperly constituted panel, “[i]t is the General Counsel’s position that Alan Ritchey was soundly reasoned and that the Board should adopt the Alan Ritchey rationale as its own.”

In turning to the question of whether Alan Ritchey could apply to discretionary situations during a contract hiatus, Advice noted the rationale has “two primary policy rationales”:

First, the Board explained, requiring bargaining prior to imposing discipline precludes the ‘harm caused to the union’s effectiveness’ that would likely result if the bargaining occurred after discipline was imposed, and therefore prevents the employer from undermining a newly-certified union.  Second, requiring bargaining prior to imposing discipline permits the union to present additional evidence and arguments, including extenuating circumstances, for why the employer should give the employee a lesser form of punishment, and therefore will often lead to a ‘more accurate understanding of the facts, a more evenhanded and uniform application of rules and conduct, and…a better and fairer result….’

(footnotes omitted). In concluding that this same rationale did not apply to discretionary disciplinary actions taken during a contract hiatus, Advice had this to say:

However, once the parties have negotiated and agreed upon a discipline policy pursuant to a collective-bargaining agreement–even one that allows for broad employer discretion–the employer’s imposition of discipline under that policy does not represent the same threat to the bargaining relationship and should not be analyzed under the Alan Ritchey framework.  This is because when an employer issues discipline in accordance with a collectively-bargained policy, the union has already had the opportunity to weigh in on the matter, and therefore the exercise of discretion within the confines of a negotiated term or of the parties’ past practice is not a unilateral change.

(emphasis supplied).

Advice stressed that a different result might have occurred if there was evidence that the practice concerning disciplines had been changed by the employer.  It also noted the union had opportunity to provide input during the grievance procedure even if it could not submit the matter to arbitration.

So, for now, this interpretation will mean the Board will normally apply Alan Ritchey only to cases where the union and employer are in the initial stages of representation.  Advice left open the possibility that an employer could violate is obligation to bargain by changing the manner in which it metes out discipline during a hiatus period, which seems an open question if one is dealing with discretionary decisions.  Employers in a contract hiatus situation should ensure that everything is done to apply discipline just as it had during the term of the contract to avoid such allegations.

NNU Ebola “Day of Action” Slated for November 12, 2014

Posted in Ebola, Healthcare Employers, Strikes

Registered nurses in 16 states and the District of Columbia are planning a national “Day of Action” by engaging in strikes, picketing, leafleting, rallies, and candlelight vigils on Wednesday, November 12, in support of demands by National Nurses United (“NNU”) for tougher Ebola safety precautions in the nation’s hospitals.  As we reported previously, NNU has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  Wednesday’s Day of Action is the latest development in that campaign.

The NNU is demanding optimal personal protective equipment for nurses and other caregivers who interact with Ebola patients. Specifically, full-body hazmat suits that meet the American Society for Testing and Materials F1670 standard for blood penetration, F1671 standard for viral penetration, and that leave no skin exposed or unprotected, and National Institute for Occupational Safety and Health-approved powered air purifying respirators with an assigned protection factor of at least 50.  The union is also demanding that hospitals provide extensive hands-on training for RNs and other health workers who might encounter an Ebola patient, including ongoing education and review of the use of personal protective equipment and infection control protocols.

Actions in support of these measures include a two-day strike at 86 Kaiser Permanente hospitals and clinics in California, starting on November 11, by 18,000 RNs and nurse practitioners who have been engaged in negotiations with Kaiser for several months.  The planned strike cites Ebola preparedness as part of a broader protest alleging the erosion of patient care standards.  In a November 10 statement, Kaiser vigorously disputed the NNU’s claims and expressed disappointment at the planned job action.

Additional strikes will involve roughly 600 RNs at two other California hospitals – Sutter Tracy and Watsonville General Hospital – and 400 RNs at Providence Hospital in Washington D.C., where nurses voted to unionize last December.  Additional events include picketing, rallies, and vigils at hospitals and government buildings (including the White House) in Washington, D.C.; New York; Chicago; Houston; St. Louis; Kansas City; Las Vegas; Lansing, Michigan; Massillon, Ohio; Augusta, Georgia; Bar Harbor, Maine; Durham, North Carolina; St. Paul, Minnesota; Memphis, Tennessee; and Ft. Lauderdale, Florida, while nurses in Massachusetts are planning to distribute leaflets at commuter stations.

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

Posted in Employer policies, Facebook, NLRA, NLRB, Protected activity, Social Media, Social Media Policies

 In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the neighborhood center, was not protected under the NLRA.  During the course of their Facebook exchange, which included obscenity-laced statements regarding how they would “raise hell” at the center, the employees lost protection under the NLRA because of their threats of insubordination.

The employees discussed at length how they would supplant the “happy-friendly-middle school campy” atmosphere at the center with a reckless regime of “field trips all the time to wherever [ ] we want” and other activities at variance with the center’s management. After management received screenshots of this prolonged exchange, they rescinded the re-hire offers for these two former employees for the following year.

The Board adopted the ALJ’s finding that the “Facebook exchange contains numerous statements advocating insubordination.”  In particular, the employees:

  • Refused to obtain      permission as required by the Employer’s policies (“ordering [ ], having      crazy events at the Beacon all the time. I don’t want to ask permission.”)
  • Disregarded specific      school-district rules (“teach the kids how to graffiti up the walls…”)
  • Undermined leadership (“I      would hate to be the person takin your old job”)
  • Neglected their duties (“I      AINT GOBE NEVER BE THERE”)
  • Jeopardized the future of      the institution (“they start loosn kids I aint helpn”)

Despite the General Counsel’s argument that the ALJ incorrectly applied a subjective standard of what the employer “could” conclude, the Board found that the employees’ “pervasive advocacy of insubordination in the Facebook posts, compromised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection.”  In adopting an objective standard, the Board noted here that the actions were described in such detail that a reasonable employer would reasonably refuse to take the risk of waiting to see whether the employees would act on the conduct they so artfully advocated.

This decision places reasonable limits on what the Act protects when employees, even when acting concertedly, plot to undermine the employer’s legitimate business expectations through insubordination.  It is not a guarantee, however, that similar conduct will always be found to have lost the Act’s protection.  There is ample evidence in other work rules and social media cases that neither the Board nor the General Counsel will hesitate to second-guess what appear to be common sense, reasonable employer rules and how an “objective” employee will read them.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.

NLRB Imposes Extraordinary, Tough Remedies for Egregious and Pervasive Violations

Posted in NLRA, NLRB, Rights Poster

In a landmark decision, the National Labor Relation Board has imposed an array of extraordinary remedies against an employer for what the NLRB described as “egregious and pervasive violations” of the National Labor Relations Act.  Pacific Beach Hotel, 361 NLRB No. 65 (2014).

As the basis for its imposition of the remedies, the NLRB stated:

Despite having been found in violation of multiple provisions of the Act, having been found to have engaged in objectionable conduct that interfered with elections on two occasions, having been subject to two Section 10(j) injunctions, and having been found in contempt of court for violating a Federal district court’s injunction, the case before us demonstrates that the Respondents still have not complied with the remedial obligations imposed on them during our earlier encounters. Rather, they have continued to engage in unlawful activity, some of which repeatedly targeted the same employees for their protected activity and detrimentally affected collective bargaining.

Slip op. at 2 (emphasis in original).

While the remedies in question were based on those imposed in previous NLRB and judicial proceedings, the decision marks the first time that so many of the remedies have been imposed against one party in a single order.  The enhanced remedies imposed by the NLRB in its decision include:

  • Payment of the NLRB General Counsel’s and the Union’s attorneys’ fees and costs.  This raises the issue of the Board’s authority to  require this either under its its claimed inherent power to “control and maintain the integrity of its own proceedings,” and perhaps sets up a test in the federal courts.
  • Payment of the Union’s bargaining expenses (and other related expenses) to the extent they exceed “normal expenses” as a result of the Employer’s violations. 
  • Posting and mailing of the traditional Board notice, the NLRB decision and an Explanation of Rights of employees under the NLRA. The Explanation of Rights is a unique remedy devised for the first time in this case.  Its stated purpose is to set out “the Employees core rights under the Act, coupled with clear general examples that are specifically relevant to the unfair labor practices found in this case.”  While the federal courts have found that the Board did not have the power to require the posting of similar notices under its rulemaking authority, the Board claims the power to require Explanation of Rights in this case under its remedial authority, tailored to the specific violations in this case.
  • Requiring the posting period to be three years. The normal posting period is sixty days, but the Board felt the three year period was necessary to overcome the “legacy of coercion” and to “change . . . the workplace culture.” 
  • Requiring mailing to all employees, including supervisors and managers. One of the points of dissent was the authority of the Board to require notices to be mailed or distributed to supervisors and managers, who are not statutory “employees” under the NLRA. 
  • Requiring the notice and the Explanation of Rights to be given to all newly hired employees, and supervisors and managers, for a period of three years. 
  • Requiring the notice and Explanation of Rights to be published in two publications of” broad circulation and local appeal” twice a week for a period of eight weeks. 
  • Requiring the reading of the notice and Explanation of Rights to all of the employees, and requiring the attendance of managers and supervisors, including senior executives, at each of the three meetings where the reading takes place. 
  • Rescission of unlawful unilateral changes made by the Employer to the terms and conditions of employment, including any rule at variance with any contractual provision or past practice of allowing Union representatives access to the Employer’s property. 
  • Inclusion of a “visitation clause” in the notice, allowing a “duly appointed Board agent” to enter the Employer’s facility for a period of three years for the purpose monitoring whether the Employer is in compliance with the “posting, distribution mailing requirements.” 

The NLRB considered and endorsed, but did not award, front pay for a specific individual who it found had been the focus of discrimination and discharge by the EmployerSuch an award would have been a first for the Board, which heretofore has only awarded make whole remedies such as back pay and reinstatement.

The two separate dissents took issue with some portions of the above remedies, but in general agreed that this was a case in which at least some of the remedies were appropriate.

The remedies in this case are undoubtedly strong.  It remains to be seen whether, if challenged, they will survive in this form.  But for now, this decision marks a dramatic but not completely surprising effort from the Board to put more “teeth” in its remedies, particularly where dealing with what it considers a recidivist employer.  Query whether these remedies, or versions of them, will be extended to cover other, less egregious cases.








Ebola and Potential Labor Relations Issues

Posted in Collective Bargaining, Healthcare Employers, Non-Union employers, Protected activity, Strikes

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers.  The escalating concern over Ebola also raises potential labor relations issues.  Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members.  Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.

An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees.  Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears.  Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.

Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training.  Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.

National Nurses United (NNU) has been especially outspoken.  In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands.  Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease.  Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.

Other unions are engaging in similar activities.  As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active.  Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.

In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns.  At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola.  In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.

Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears.  In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations.  Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns.  They may also be faced with bargaining demands by employees seeking greater protection.  Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.

NLRB Refines Its Test for Independent Contractor Status

Posted in Bargaining units, Collective Bargaining, Representation Elections

The National Labor Relations Board, with one member dissenting, has issued a decision in which it “refines” the test it uses for determining whether it will find individuals performing services for an employer to be employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx Home Delivery, 361 NLRB No. 55 (2014). This is an important decision because of its broad application in determining the status of workers in both representation cases and in unfair labor practice cases as well.

In the decision, the NLRB found drivers for the company to be employees, not independent contractors.  The overriding issue in the case involved the proper role of evidence on the issue of whether the drivers possessed the “entrepreneurial opportunity for gain or loss” that would be the hallmark of an independent business, and how that factor should be evaluated in light of the other traditional factors considered by the NLRB and the courts in such cases.

Although these types of cases are virtually always heavily fact dependent, the Board took the opportunity in this case to make some key legal points about the evidence of economic opportunity for gain or loss:

(1)  The multifactor test articulated in the Restatement (Second) of Agency § 220 (1958) has traditionally been employed by the NLRB and the courts in making and reviewing employee/independent contractor determinations under the NLRA. The Board stated that it would simply consider entrepreneurial opportunity along with the Restatement factors, but would not grant it overriding “animating” importance, as it accused the DC Circuit of doing.

(2)  The Board further held that any claimed entrepreneurial opportunity of the individuals in question must be real, not merely theoretical.  The Board will look at employer imposed and other structural factors which act as an impediment to the genuine existence of entrepreneurial opportunity.  Further, in representation cases, the Board will consider evidence regarding only the individuals in question (here, those in a requested bargaining unit), and not system wide or extra-unit evidence.  (It is to be expected that a similar limitation will be imposed in unfair labor practice proceedings where no bargaining unit issue is in play.)

(3)  Finally, Board said that it will look at the work being done by the individuals in question and ask whether they are truly performing it in the same way as a bona fide independent business would.

In a lengthy, detailed dissent, Member Johnson took issue with the majority on a number of legal and policy issues, perhaps best summarized by his statement that the majority decision constitutes “a sharp departure from precedent by diminishing the significance of the entrepreneurial opportunity factor to the point where it will rarely be considered as among the decisive factors in determining independent-contractor status.”

As noted, this case, like all such cases, is heavily fact bound, but the refinements in the test articulated by the NLRB purport to draw clear line in the sand between it and the DC Circuit over the issue of the proper role of and weight to be given entrepreneurial opportunity for gain or loss.  The case could therefore precipitate yet another show-down between the NLRB and the one federal court of appeals with virtually nationwide jurisdiction to review NLRB decisions.


¿Cómo Se Dice: “Lost in Translation”?

Posted in Decertification elections, Objectionable Conduct, Representation Elections

Labor law is filled with many technical rules, the meaning of which can sometimes can be lost in translation.  The recent NLRB decision in Labriola Baking Co., 361 N.L.R.B. No. 41 (2014), is a case in point.

During a campaign before a decertification election, an employer’s representative stated in a speech to the employees:  “If you chose Union Representation, we believe the Union will push you toward a strike. Should this occurs [sic], we will exercise our legal right to hire replacement workers for the drivers who strike.”  This was not an unlawful statement.

However, a translator hired to translate the speech for the workers – 80% of whom were Spanish speaking – used the Spanish words for “legal workers” or “legal workforce” in place of the English phrase “replacement workers.”  This led to a claim by the union that the employer tainted the election because the Spanish speaking workers, hearing that the employer had the right to hire “legal workers” or a “legal workforce,” would perceive this as a threat that their immigration status would be subject to scrutiny.

The employer countered that the speech, as written and delivered in English, had nothing to do with the workers’ immigration status.  Rather, the speech did nothing more than truthfully state the employer’s legal right to hire replacement workers during a strike.  But the Board held that because the translator was the employer’s agent, his rendition of the key phrase was attributable to the employer.

The employer further argued that even the phrase as translated by the translator did not threaten the employees with investigations into their immigration status.  Nevertheless, the Board held that given the potential vulnerabilities of the Spanish speaking workers, as well as their friends and relatives, the reference to “legal workers” or  a “legal workforce” could be very threatening to them. The Board further stated that it “must continue to fine tune its institutional ‘ear’ in order to protect vulnerable workers from immigration related threats and manipulation that violate the Act.”

The dissent agreed that the translated phrase could be attributed to the employer, but disagreed that it was threatening.  The dissent reasoned that simply because the workforce was predominantly Spanish-speaking did not support the majority’s inference that they would hear the translated words as a threat regarding their immigration status.

The lesson here is clear.  The employer, having chosen a translator spokesperson, will be responsible for the translator’s rendition of otherwise lawful speech.  Further, the Board – which evaluates statements from the standpoint of those who hear them – will “fine tune its institutional ear” to take account of the perceived vulnerabilities of the audience.